The Amarillo Court of Appeals has held that the Texas Tort Claims Act’s limitation on a governmental entity’s liability in a premises liability case did not apply because TxDOT created a special defect on an I-35 frontage road that caused plaintiff’s accident.
Texas Department of Transportation v. David P. Sonefeld (No. 07-22-00307-CV; delivered December 21, 2023) arose from a motorcycle accident that occurred when plaintiff’s motorcycle tires became trapped in a road separation measuring six to seven inches wide, two to four inches deep, and 100 to 200 feet long when he changed from an outer to inner lane trying to access northbound I-35 in Fort Worth. He fell off the motorcycle and was injured. He filed suit in Tarrant County district court. Plaintiff moved for summary judgment on the basis that the road separation was a special defect, meaning that TxDOT owed him a duty as an invitee rather than a licensee. The trial court granted the motion. The jury returned a verdict for plaintiff. TxDOT appealed.
In a case transferred to Amarillo for docket equalization, the court of appeals affirmed. The only question was whether the road separation was a premises defect, in which case TxDOT owed plaintiff a duty as a licensee under § 101.022, CPRC (Texas Tort Claims Act), or a special defect, which raised the standard of care to the duty a private landowner owes to an invitee. In special defect cases, the landowner has a duty to warn the invitee of an unreasonable risk of harm created by the condition when the owner knows or reasonably should know of the condition. As to what constitutes a special defect, SCOTX has laid down the following guidelines: size of the condition, whether the condition unexpectedly and physically impairs the vehicle’s ability to operate on the road, whether the condition presents some unusual quality apart from the ordinary course of events, and whether it presents an unexpected and unusual danger to the ordinary users of the roadway (citations omitted). Applying these factors, the court concluded that the separation was in the nature of an excavation and constituted a special defect.
TxDOT did not contest the facts about the separation but argued that plaintiff could have avoided it, rendering it a mere premises defect. The court disagreed, citing the heavy traffic on the access road and the unpredictability of traffic conditions with respect to lane changes. TxDOT argued further that plaintiff’s evidence was insufficient to show that TxDOT knew about the condition in time to make it reasonably safe. Again, the court disagreed, pointing to the testimony of TxDOT’s own engineers and maintenance people, who testified that the separation problem had existed for years and that they monitored it and patched it up from time to time. (Those witnesses also acknowledged that the condition could be dangerous to motorcycles. Oops.) The court thus concluded that TxDOT had the requisite knowledge of the risk of foreseeable harm resulting from the road separation.
